Public order law - Balancing public order and freedom of exp...

Learning Outcomes

This article outlines key aspects of public order law in England and Wales, including:

• the regulatory framework for public processions and assemblies under the Public Order Act 1986 and related reforms;
• the scope of police powers to impose conditions, prohibit events, disperse crowds and prevent breach of the peace, and the legal thresholds for their lawful use;
• the relationship between the POA 1986, the Human Rights Act 1998 and Articles 10 and 11 ECHR, focusing on qualified rights to freedom of expression and assembly;
• how proportionality, necessity and legitimate aim tests are applied when restricting protests in a democratic society;
• the distinction between processions, public assemblies and trespassory assemblies, and the different statutory requirements that apply to each;
• the common law concept of breach of the peace and its role alongside statutory public order offences and powers;
• the role of judicial review and appellate courts in supervising police and state decisions affecting protest rights;
• core skills of statutory interpretation and legal reasoning needed to analyse fact patterns and assess the legality of police action in SQE1-style multiple-choice questions.

SQE1 Syllabus

For SQE1, you are required to understand public order law in England and Wales, including police powers, the regulation of processions and assemblies, and the qualified rights under Articles 10 and 11 ECHR, with a focus on the following syllabus points:

• Structure, rationale, and legal authority for public order law in England and Wales.
• The legal definitions and practical distinctions between public processions, public assemblies, and trespassory assemblies.
• Advance notice, notification exemptions, and the legal consequences of non-compliance.
• Statutory and common law powers available to police for managing protests, including imposition of conditions, prohibitions, and emergency interventions.
• Rights to freedom of expression and assembly under the ECHR, including the jurisprudence of Article 10 and Article 11 and the doctrine of proportionality.
• Recent legislative developments (including the Police, Crime, Sentencing and Courts Act 2022 amendments to the POA 1986) and their impact on practical policing of protests.
• The structure of the criminal courts in relation to public order offences and supervisory/judicial review of state/police decision-making.
• The intersection of public order measures and access to the courts, including judicial review as a mechanism for redress in human rights and public law claims.
• How to apply the principles of statutory interpretation and judicial precedent when evaluating the reach and limitation of public order legislation.
• Distinction between criminal and civil liability arising from conduct during public order situations, with reference to relevant summary and indictable offences.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under which section of the Public Order Act 1986 can the police impose conditions on a static public assembly?
2. True or False: The police can impose a blanket ban on all public assemblies in a specific district for up to three months.
3. Which of the following is required for the police to exercise common law powers to prevent a breach of the peace? a) Actual violence has occurred. b) A breach of the peace is reasonably apprehended as imminent. c) A complaint has been made by a member of the public. d) The assembly consists of more than 20 people.
4. Which two Articles of the European Convention on Human Rights are most relevant when considering restrictions on protests?

Introduction

The regulation of public gatherings, processions, and assemblies in England and Wales is an area where the law is tasked with maintaining a careful balance between the interests of public order and the preservation of individual freedoms. This balance is seen most acutely in the interplay between the statutory and common law powers possessed by the police and the rights to expression and assembly, as guaranteed both domestically and by international obligations.

Public order law has been developed notably over the past century, integrating historic constitutional principles such as the rule of law and parliamentary sovereignty with more modern concepts of fundamental rights, as embedded in the Human Rights Act 1998. The incorporation of the ECHR (particularly Articles 10 and 11) into domestic law has transformed the legal framework, requiring decision-makers to justify any interference with protest rights as being prescribed by law, pursuing a legitimate aim, and being necessary and proportionate.

Public demonstrations can take a variety of forms, from planned marches involving thousands of participants to spontaneous gatherings, static protests, or trespassory occupations. The legal framework for managing such events derives primarily from the Public Order Act 1986, with significant supplementary provisions found in common law, the Police and Criminal Evidence Act 1984, and other public order statutes such as the Criminal Justice and Public Order Act 1994.

Key Term: Freedom of Expression (Article 10 ECHR)
The qualified right to hold opinions and to receive and impart information and ideas without interference by public authority, subject to restrictions prescribed by law and necessary in a democratic society for aims such as national security, public safety, the prevention of disorder or crime, protection of health or morals, or the protection of the rights and freedoms of others.

Key Term: Freedom of Assembly and Association (Article 11 ECHR)
The qualified right to peaceful assembly and association with others, subject to restrictions prescribed by law and necessary in a democratic society for objectives including public safety, prevention of disorder or crime, and protection of others’ rights.

In understanding public order law, familiarity with UK constitutional principles (such as the supremacy of Parliament, the responsibilities and powers of the police as a public authority, and the courts’ supervision through judicial review) underpins the practical application of legal rules to real-world scenarios.

Public Processions

A foundational aspect of public order law is the treatment of moving protests—public processions—which are subject to more rigorous notification and regulation than static gatherings. The law reflects the potential for greater disruption where groups move along a predetermined route as opposed to remaining in a fixed location.

Key Term: Public Procession
A procession of persons moving in a public place, whether on foot or using vehicles. It is not statutorily defined, but includes any collective movement along a route, such as a march or parade, in areas to which the public has access by right or invitation.

Advance Notice Requirements (s 11 POA 1986)

Organisers intending to hold certain public processions must give written notice to the police, specifying the date, time, route, and organiser's details. Notice must be given at least six clear days in advance to the police station nearest to the processions start point. As clarified in relevant case law and practical guidance:

• This notice requirement applies if the procession is designed to support or oppose views/actions, publicise a cause, or commemorate an event.
• The requirement aims to facilitate effective policing and allow police to assess risks, allocate resources, and discuss possible conditions with organisers.
• Exemptions apply for customary processions (such as annual religious or ceremonial parades), funeral processions led by funeral directors, and cases where advance notice is genuinely impractical, e.g. spontaneous marches in reaction to breaking news.

The absence of a proper notice does not in itself make the procession illegal; however, it may expose organisers to summary offences and diminish cooperation with the police.

Worked Example 1.1 A group arranges an impromptu protest march in response to a political speech that was unexpectedly delivered in their city. They proceed without notifying the police in advance. Can the march be lawfully stopped or prosecuted solely due to lack of notice? Answer:
No. Lack of notice does not render the procession unlawful per se. However, the organiser may commit an offence by failing to give the required notice unless it was not reasonably practicable to do so. The police may impose conditions or, in more severe cases, seek bans if the substantive criteria are met, but spontaneous action alone does not make the event illegal.

Imposing Conditions (s 12 POA 1986)

The chief officer of police (or the senior police officer present during a procession) has statutory authority to impose such conditions on a public procession as are necessary to prevent:

• serious public disorder,
• serious damage to property,
• serious disruption to the life of the community, or
• intimidation of others.

Following the Police, Crime, Sentencing and Courts Act 2022 (“PCSC Act 2022”), these powers now explicitly extend to processions where noise may cause serious disruption to an organisation or significant impact on those in the vicinity.

Conditions may include altering the route, limiting numbers, requiring certain timings, or prohibiting entry to specified locations. The decision must be based on a reasonable belief regarding the likely outcome if conditions are not applied.

Organisers and participants who knowingly fail to comply with these imposed conditions commit summary offences—organisers being liable to fines and/or imprisonment, and participants to fines.

Key Term: Senior Police Officer
Before the start of a procession, this is the chief officer of police for the area; during the procession, it is the most senior officer present at the scene.

The proportionality of any condition is essential; conditions must not go further than required to prevent the problem identified. Blanket prohibitions or unduly burdensome restrictions may contravene ECHR rights.

Worked Example 1.2 An annual march supporting a controversial public issue plans its usual route through a city. The police anticipate that the march, passing a hospital and several schools, combined with the use of loudspeakers, will cause significant disruption, particularly during school hours. What conditions could lawfully be imposed? Answer:
The police may impose conditions on the route (e.g. diverting away from the hospital and schools), restrict or ban amplified sound at particular locations or times, and limit the timing or duration of the march, provided these are reasonable and necessary to prevent serious disruption or protect the rights of others. The measures should reflect a balance between the marchers' rights and public order.

Prohibiting Processions (s 13 POA 1986)

Where the chief officer of police reasonably believes that the imposition of conditions under s 12 will not suffice to prevent serious public disorder, they can seek a blanket ban on all public processions or processions of a particular class in the district for a specified period (not exceeding three months). This application must be made to the local council, with the consent of the Home Secretary (or directly to the Home Secretary in London).

• Bans cannot be imposed on a single specific procession but must cover all or a type of procession within the district.
• Failure to comply with a prohibition is a criminal offence.
• Any prohibition must be both strictly necessary and a last resort; alternatives should be considered first.

Worked Example 1.3 A significant football rivalry match, set in a city with recent history of mass public disorder during similar events, is scheduled, and the police receive credible intelligence that violent disorder is likely regardless of any conditions imposed. Can the police seek to ban a planned supporters' march in the city centre? Answer:
Only if they can demonstrate that serious public disorder is reasonably likely and that conditions under s 12 would be insufficient to prevent it. The chief officer may seek a ban on all or a class of processions (e.g. supporter marches) for up to three months, with council and Home Secretary approval. Such an intervention must be justified and proportionate.

Public Assemblies

Static demonstrations—in contrast to processions—are regulated less stringently but may nevertheless pose challenges where the potential for disorder arises or where public inconvenience would be serious.

Key Term: Public Assembly
An assembly of two or more persons in a public place which is wholly or partly open to the air (s 16 POA 1986).

The definition recognises that very small groups may create disruption, so the threshold for regulation is intentionally low. The requirements for managing assemblies differ from those governing processions, as outlined below.

Imposing Conditions (s 14 POA 1986)

A senior police officer present at the assembly—or, if appropriately timed, the chief officer of police—may impose conditions (such as specifying the location, limiting numbers, or setting a maximum duration) if there is a reasonable belief that serious disorder, damage, disruption, or intimidation may result. The 2022 amendments expand these powers, allowing for restrictions addressing excessive noise that has a relevant detrimental effect (serious disruption or significant impact on others).

Unlike processions, there is no requirement for advance notice of assemblies, reflecting the reality that many protests are spontaneous.

Conditions must be necessary, proportionate, and tailored to the identified risks—overly broad restrictions may undermine ECHR rights.

Worked Example 1.4 A small group arranges a static demonstration in a major public square using megaphones, attracting growing numbers throughout the day, and resulting in disruption to local business and significant complaints about noise. What options are available to the police? Answer:
The police can impose or vary conditions relating to location, duration, or numbers to limit the disruption, and can restrict or prohibit amplified noise if it significantly impacts those in the vicinity. The restrictions imposed must address the disorder or disruption reasonably apprehended, without unnecessarily impairing the right to protest.

Breaching conditions imposed under s 14 is an offence, with both organisers and participants liable to prosecution.

Trespassory Assemblies (s 14A-C POA 1986)

Key Term: Trespassory Assembly
An assembly of 20 or more persons on land in the open air to which the public has no right of access, or only a limited right, which is likely to be held without the occupier's permission or exceeding the terms of that access.

Trespassory assemblies represent higher risks, often involving occupations of private (or restricted) land. The police may apply for an order prohibiting all such assemblies in a designated area (not exceeding a 5 mile radius) for a period of up to four days. Applications are made by the chief officer to the local council, with Home Secretary consent, or directly in London.

The threshold for prohibition is strictly drawn: the assembly must be likely to result in serious disruption to the life of the community or significant damage to the land, buildings, or monuments of importance.

It is a criminal offence to organise, participate in, or incite participation in a prohibited trespassory assembly. Police also have powers to direct persons travelling to such an event not to proceed.

Worked Example 1.5 Environmental activists plan a week-long protest occupation in a privately owned nature reserve without permission. The gathering is expected to be well attended but raises real concerns for serious environmental damage and disruption to surrounding land-using communities. Can the assembly be lawfully prohibited, and how may this be enforced? Answer:
Yes. Where the gathering exceeds 20 people, is on land without public access, and is likely to cause serious disruption or environmental damage, the police may apply for an order to prohibit such assemblies in a defined area for up to four days. Police may also stop and direct persons travelling there not to proceed. Offences attach to organisation, participation, or incitement.

Police Dispersal and Related Powers

Both statutory and common law grant police supplementary powers to maintain public order during or following assemblies or processions. In addition to the powers discussed, police may disperse gatherings where there is a risk of violence or serious public harm, usually after conditions under s 14 or s 14A fail to prevent the problem.

Police powers also extend to immediate dispersal of trespassory assemblies and control of public gatherings posing imminent threats of serious disorder or violence, acting within the bounds of necessity and proportionality. Additional offences such as aggravated trespass or wilful obstruction (see the Highways Act 1980) may also be charged depending on conduct during a protest.

Breach of the Peace

The police retain significant common law powers in relation to breach of the peace, supplementing statutory provisions. Breach of the peace is not a criminal offence itself, but instead enables the police (and, in certain situations, members of the public) to take preventative and, in some cases, urgent action.

Key Term: Breach of the Peace
Occurs where actual or likely harm is done to a person, or in their presence to their property; or where an individual is in fear of such harm by means of assault, affray, riot, unlawful assembly, or other disturbance.

Critical features of breach of the peace powers include:

• Police (and, in some circumstances, any person) may take reasonable action to prevent an imminent breach, including arrest, dispersal, or entry onto premises (even private), provided the intervention is strictly necessary.
• The threat or risk of violence must be real and imminent—the courts have ruled that action cannot be justified on the basis of a remote or speculative possibility.

Notably, following R (Laporte) v Chief Constable of Gloucestershire, preventative measures taken by the police require an imminent risk of disorder, and all interventions must be proportional and targeted.

Binding over orders may be made by a magistrate, requiring individuals to refrain from specified conduct or activities for a set period, commonly up to 12 months.

Worked Example 1.6 A group of counter-protesters gathers near a public meeting, and there is credible intelligence that violence may occur unless they are swiftly dispersed. What action may lawfully be taken? Answer:
Police may take reasonable steps—including temporary arrest or dispersal—to prevent an imminent breach of the peace. If the risk of violence is imminent and credible, temporary detention and ordering dispersal are justified measures, provided they are proportionate to the threat and last no longer than necessary.

Judicial Review and the Courts' Role in Public Order Law

Given the wide scope of discretion vested in senior police officers, public order decisions are subject to review by the courts. Judicial review provides a mechanism to challenge the lawfulness and proportionality of state action or inaction—such as the imposition of unduly restrictive conditions, blanket bans, or failures to take action to protect legitimate protest rights. The courts have affirmed the importance of preserving access to the courts for review of police or state decisions impacting fundamental freedoms.

Balancing Rights: Proportionality

State powers to restrict or control assemblies and processions must comply with the European Convention on Human Rights, as implemented by the Human Rights Act 1998. Any restriction on Articles 10 or 11 must satisfy three cumulative requirements:

• Prescribed by law: The restriction must have a clear basis in domestic law, such as the POA 1986.
• In pursuit of a legitimate aim: The interference must be intended to serve an aim expressly listed in Articles 10(2) and 11(2) ECHR—public safety, prevention of disorder or crime, protection of health or morals, or protection of others' rights and freedoms.
• Necessary in a democratic society: There must be a pressing social need for the restriction, and it must be both appropriate and no more intrusive than required.

Key Term: Proportionality
Any restriction on fundamental rights must be proportionate—the least restrictive measure available must be used, and the interference with the right must not exceed what is necessary to achieve the legitimate aim.

The courts apply the proportionality test in reviewing police powers to impose conditions and prohibitions, as in Austin v Commissioner of Police for the Metropolis, and Tabernacle v Secretary of State for Defence. Blanket bans, or uniform restrictions that are not tailored to the particular context, are especially liable to be ruled disproportionate unless there is an exceptional justification.

Worked Example 1.7 Police ban the use of all banners and sound systems at a peaceful public assembly involving a group of 30 people protesting against government policy in a large city park. The stated reason is to avoid minimal nuisance to park visitors. Does this restriction comply with the requirement of proportionality? Answer:
Such a blanket ban likely fails proportionality as the restriction is not justified by a pressing need—it is not tailored and does not address a clear threat of disorder or serious disruption. Less restrictive measures (such as limiting noise levels or the size of banners) should be considered instead. The police must provide a rational basis for the restriction, and it must be necessary in the circumstances.

Police and other public authorities must act compatibly with the Convention rights, and failure to do so exposes their decisions to judicial scrutiny.

Worked Example 1.1

A spontaneous protest arises after an unexpected political announcement; police quickly move to disperse all participants on the basis that advance notice was not given. Is this compatible with Articles 10 and 11 rights?

Answer:
The lack of advance notice, by itself, does not justify dispersing a peaceful assembly unless there is evidence of disorder or risk to public safety. The action may breach rights under Articles 10 and 11 as it is not prescribed by law or necessary in a democratic society, particularly as lack of notice, for a genuinely spontaneous protest, does not itself render the protest unlawful or dangerous.

Statutory Interpretation and Precedent in Public Order Law

Interpreting the POA 1986 and related legislation requires familiarity with the core rules of statutory interpretation, including the literal, golden, mischief, and purposive approaches. Courts often weigh the wording of the statute against the objects of the POA 1986 (prevention of disorder, protection of the public, upholding fundamental rights) when construing police powers or protestors’ liabilities. Precedent is created by the higher courts (including the Supreme Court and Court of Appeal) when interpreting these statutes, and lower courts are bound to follow these precedents.

Worked Example 1.9 A lower court is faced with conflicting precedents from higher courts regarding the imposition of protest conditions. How should it proceed? Answer:
The lower court is bound to follow the authority of the higher court whose precedent is most directly applicable. If appellate-level authorities conflict, the court must consider whether an exception applies or await clarification from a higher court.

Funding, Access to Courts, and Practical Enforcement

Individuals seeking to challenge police or state action regarding public order—whether by judicial review, criminal defence, or civil claim—may be eligible for legal aid depending on their means and the merits of their case. The legal system preserves a right of access to the courts, which is a core element of the rule of law and is protected by both ECHR and UK constitutional principles.

When assessing the adequacy of legal rights and remedies in public order matters, attention should also be given to practical enforcement, access to representation, and the overarching requirement for the law and its application to be clear, accessible, and predictable.

Key Point Checklist

This article has covered the following key knowledge points:

• The structure and legal basis of public order law in England and Wales, including the Public Order Act 1986 and relevant common law doctrines.
• The definition, requirements, and advance notice obligations for public processions; differences with public assemblies.
• Statutory powers for police to impose conditions, prohibit processions and trespassory assemblies, and regulate the use of noise and equipment during protests.
• Criteria and strict limitations on the power to ban processions or assemblies, and the need for explicit Home Secretary or council approval for blanket bans.
• The role and definition of trespassory assembly, and procedures for prohibition and enforcement under the POA 1986.
• The nature and extent of police common law powers to prevent breach of the peace, including arrest, dispersal, entry, and the requirement for imminent threat.
• How all restrictions on protests and assemblies must comply with the ECHR, being prescribed by law, in pursuit of a legitimate aim, and proportionate.
• The role of proportionality, necessity, and minimal intrusion in finding the correct legal balance between public order and individual rights.
• The structure of the court system in hearing challenges against public order decisions and the principle of judicial precedent in settling public order law.
• Access to courts and funding mechanisms in public law and criminal cases affecting protest rights and liabilities.

Key Terms and Concepts

• Freedom of Expression (Article 10 ECHR)
• Freedom of Assembly and Association (Article 11 ECHR)
• Public Procession
• Senior Police Officer
• Public Assembly
• Trespassory Assembly
• Breach of the Peace
• Proportionality